SAN MARTIN

Interim Decision #2840

MATTER OF SAN MARTIN

In Bond Proceedings
A-19041533
Decided by Board December 26, 1974
Respondent was in custody pursuant to the revocation of ball by the immigration judge at
a bond redetermination hearing under 8 GFR 242.2(b) at which respondent was seeking
redetermination of the $15,000 bond set by the district director. Respondent then
appealed to the Board from the judge's decision. The immigration judge took into
consideration the respondent's prior conviction for possession of marijuana; his prior
deportation; his reentry after deportation without permission; his prior failure to appear
on a charge of possession of cocaine, when under $5,000 bond; that he was then under a
$15,000 appearance bond on a criminal charge; and the lack of family ties in the United
States. The Board noted that bail had been awarded him in the pending criminal
proceedings, and all factors considered held that a $15,000 immigration bond was
sufficient to assure his appearance in the deportation proceedings.
ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE:
Shaya Estrumsa, Esquire Paul C. Vincent, Esquire
200 S.E. 1st Street, Suite 200 Appellate Trial Attorney
Miami, Florida 33131

The respondent appeals from the November 15, 1974 decision of the
immigration judge, who ordered that the respondent be held without
bail. We shall order his release from custody upon the posting of a bond
in the amount of $15,000.
The respondent is a married male alien, 32 years of age, a native and
citizen of Colombia. His wife and children reside in Colombia, of which
country they are citizens. He was previously ordered deported from the
United States during 1969 on the charge of overstaying his visa. Prior to
deportation the respondent was convicted, by a court in Texas, of the
offense of illegal possession of marijuana. The Immigration Service has
no record of his readmission to the United States since his deportation in
1969, and has no knowledge of how or when he returned. He was
arrested in New York during 1972 and charged with illegal possession of
cocaine. The sum of $5,000 was set as ball, by the United States District
Court for the Southern District of New York, to assure appearance at
those proceedings. The respondent was scheduled to appear in court on
December 18, 1972, but failed to appear, and a bench warrant was
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issued for his arrest. He was apprehended in Miami, Florida during
November 1974, and was released upon the posting of $15,000 bail.
The respondent was thereafter arrested by the Immigration and
Naturalization Service and charged with deportability for having reen-
tered the United States after deportation without permission. Bond was
set at $15,000 by the district director to assure appearance at the
immigration proceedings. The respondent sought a redetermination of
his custody status pursuant to 8 CFR 242.2(b), moving for release upon
his own recognizance, or in the alternative, for reduction of bond. The
Government opposed any reduction in the amount of bond. The immi-
gration judge sua sponte decided to deny bail entirely. We have decided
to reinstate the order to release the respondent from custody upon the
posting of tend in the amount of $15,000, as set by the district director.
The immigration judge determined that the factors involved were of
sufficient gravity to warrant the respondent's detention without bail,
because of the potential threat posed by the respondent to society. The
immigration judge considered the gravity of the criminal offense with
which the respondent is charged and the lack of ties to bind the respon-
dent to answer to lawful process as factors in his decision. We believe
that, notwithstanding the pending criminal charges, the respondent
should be released under bond. We are concerned, primarily, with
assuring his appearance in the immigration proceedings. Bail has been
awarded him in the criminal proceedings.
Counsel .:ontends that when an alien in deportation proceedings must
first appear in criminal proceedings, for which bail has been set, the
alien should be released on nominal bail, at most, in the immigration
proceeding;. Counsel cites Application of Maringolo, 303 F. Supp. 1389
(S.D.N.Y. 1969), and the Bail Reform Act, 18 U.S.C. 3146, as support
for this proposition. The Maringolo case, otherwise somewhat similar
on the facts, did not involve aliens, • such as the respondent, with a
deportation record and with a history of nonappearance at proceedings,
flight to another jurisdiction, and forfeiture of bond previously posted.
With reference to the Bail Reform Act, it provides that various factors
should be taken into account, which were taken into account in this case,
and of which we shall take account. 1 • '
We shall deny the respondent's motion for release on his own recogni-
zance and for reduction of bond. There are a number of factors present
in this case which require setting substantial bail. The amount of $5,000
bail was insufficient to assure appearance at court proceedings; He has a
z "In determining which conditions of release will reasonably assure appearance, the
judicial offi.xer shall, on the basis of available information, take into account [among
other items] . . . family ties . . . his record of convictions, and his record of appearance
at court proceedings or of flight to avoid prosecution or failure to appear at court
proceedings." 18 U.S.C. 3146.

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record of nonapp earance at court proceedings; in fact, he left the jurisdic-
tion in which criminal proceedings have been pending. He has a criminal
conviction record. He has a history of violation of immigration law. He
utilized a surreptitious method to return to the United States after
deportation. These facts all evidence disrespect for lawful process. In
addition, his lack of close family ties in this country is an important factor_
After giving careful consideration to all the above factors, we have
concluded that the respondent should be released upon the posting of a
$15,000 bond to assure his appearance at immigration proceedings.
ORDER: The appeal from the denial of release under bond is sus-
tained.
Further order: The motion for release on own recognizance is denied.
Further order: The motion for reduction of the amount of bond to
$2,500 is denied.
Further order: The respondent shall be released from custody upon
posting of a bond in the amount of $15,000.
Louisa Wilson, Board Member, Concurring:

I concur in the opinion of the majority which reverses the order of the
immigration judge denying bond and authorizes his release on bond.
However, I do not agree with the decision of the majority requiring
bnnd in the amount of $15,000.00. It is my opinion that considering all
circumstances of this case, a bond in the amount of $5,000.00 is adequate
to assure the respondent's appearance in immigration proceedings.

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